Andhra Pradesh High Court - Amravati
Shaik John Saida vs The State Of A.P. on 19 July, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL APPEAL NO.456 OF 2012
JUDGMENT:(Per the Hon'ble The Acting Chief Justice C.Praveen Kumar) Assailing the conviction and sentence imposed in Sessions Case No.340 of 2009 on the file of the VII Additional District and Sessions Judge (Fast Track Court), Vijayawada, dated 13.04.2012, wherein the learned Sessions Judge while holding accused No.2 not guilty for the offence punishable under Section 302 of Indian Penal Code (for short "I.P.C.") found accused No.1 guilty for the offence punishable under Section 302 of I.P.C., and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for two months, the present appeal came to be filed under Section 374(2) of Cr.P.C. by the appellant-accused No.1.
The substance of both the charges framed against accused Nos.1 and 2 is that on 03.05.2009 at about 9.00 a.m. on N.H.9 near Donabanda Village situated within the limits of Ibrahimpatnam Police Station, accused No.1 drove a ten tyre lorry with an intention to kill Parankusam Lakshmana Rao, and his act lead to instantaneous death.
The facts as culled out from the evidence of prosecution witnesses are as under:-
P.W.1 is the sister and P.W.10 is the son of the deceased. P.W.11 is the relative of the deceased and eyewitness to the incident, P.W.2 is the eyewitness, P.W.3 is the owner of the lorry, P.W.8 is the cleaner of the lorry and eyewitness to the occurrence, P.W.4 is the
2 HACJ & MSMJ Crl.A_456_2012 wife of the deceased, P.W.7 is the medical officer, P.Ws. 5 and 6 are the mediators and panchayatdars. P.W.12 is the Sub-Inspector of Police who issued First Information Report, P.W.13 is the Inspector who initially investigated into the case and P.W.14 is the Investigating Officer.
P.W.1 was doing tailoring work at her house in the name and style of Balaji Ladies Tailor. She had three brothers and three sisters. Eldest brother is Venkata Narayana. The second brother is Srinivasa Rao and the third brother is Lakshmana Rao. Venkata Narayana died on 05.05.2008. Earlier all the brothers used to stay at Donabanda Village. After the death of Venkata Narayana, the other brothers left the village and started residing at Satyanarayanapuram Village, Ibrahimpatnam Mandal. Disputes between Venkata Narayana and his wife/Accused No.2 in connection with her relation with Accused No.1 herein. Venkata Narayana has two children. They are Babu Sainath and Sailaja, who were studying in Hyderabad. Two or three days prior to the death of Venkata Narayana, accused No.2 left the matrimonial home of her brother. It is said that, on 24.04.2009, they intended to conduct the first death anniversary of late Venkata Narayana. All family members were proceeding from Satyanarayanapuram to Donabanda Village. The evidence of P.W.1 is to the effect that at Donabanda Village, accused Nos.1 and 2 threatened to kill all the family members by dashing with ten tyres lorry. At that time, not only the two accused, but also the sister of accused No.1 threatened them along with accused Nos.1 and 2. In that connection, a report came to be lodged.
3 HACJ & MSMJ Crl.A_456_2012 On 03.05.2009, P.W.1 received a telephone call stating that his brother Lakshmana Rao was killed in lorry accident. Thereafter, P.W.1 along with P.W.10 and others went to the Ibrahimpatnam Police Station and lodged a report before P.W.12 - Sub-Inspector of Police, which came to be registered as crime No.208 of 2009 for the offence punishable under Section 302 I.P.C. Ex.P10 is the F.I.R. Since the Officer-in-charge of the Police Station was not available, P.W.12 informed the same to the Inspector of Police. On the same day at about 10.30 AM, P.W.13 - Inspector of Police, I Town Police Station, Vijayawada received information about the accident on National Highway No.9, near HPCL petrol bunk, Donabanda Village. Accordingly, he informed the same to the ACP, Traffic and both of them reached the scene of offence. Meanwhile, S.I. of Police, who obtained report with regard to the incident and registered a case, also came to the scene of offence. They also contacted the Clues Team, Vijayawada and requested them to come to the scene of offence. In the presence of P.W.5 and another, he prepared panchanama of the scene and also got photographed and videographed. Ex.P12 is the DVD by P.W.13 and Ex.P13 is the bunch of photographs. He also got prepared rough sketch, which is placed on record as Ex.P11. He found the deceased and damaged motorcycle at the scene of offence. Motorcycle is a product of Bajaj company bearing No.AP 28 AQ 1930. He then conducted the inquest over the dead body at 1.00 PM. Inquestdars opined that the driver of the lorry intentionally killed the deceased due to previous grudges and in the past the driver is said to have proclaimed that he would kill the deceased and in respect of 4 HACJ & MSMJ Crl.A_456_2012 which, a case in crime No.186 of 2009 was registered in the Ibrahimpatnam Police Station. Ex.P14 is the inquest report.
After conducting the inquest proceedings, dead body was sent for post-mortem examination. P.W.7 Assistant Professor, Department of Forensic Medicine, Siddhartha Medical College/Government General Hospital, Vijayawada conducted autopsy over the dead body and issued Post Mortem Report Ex.P.6. According to him, the cause of death was due to multiple crush injuries sustained by the deceased and the approximate time of death was about 22 to 28 hours prior to autopsy.
Further investigation in this case was conducted by P.W.14 - Inspector of Police, CCRB, Vijayawada and according to him, on 06.05.2009 at about 3.00 p.m. he received information with regard to the presence of the accused at Paritala near Anjaneya Temple. He along with other mediators and supporting staff proceeded to Paritala and arrested the accused. On the strength of the confession and information disclosed by accused No.1, they proceeded towards Gunta Quarry situated at Kachavaram Village at about 4:30 p.m. The ten tyre lorry bearing registration No.AP 16 TX 5998, which was used in the commission of offence, was seized at Gunta Quarry at Kachavaram Village. The said ten tyre lorry bearing registration No.AP 16 TX 5998 was marked as M.O.5, while lorry tyre was marked as M.O.2. Ex.P.15 is the Mediators Report. After collecting necessary documents, the Inspector of police filed charge-sheet against accused Nos.1 and 2 before the Court of the IV Additional Chief Metropolitan Magistrate, Vijayawada City, which was taken on file as P.R.C.No.43 5 HACJ & MSMJ Crl.A_456_2012 of 2009, who after complying with Section 207 Cr.P.C., committed the case to the Sessions Division under Section 209 of Cr.P.C, as the offence under Section 302 of I.P.C. is exclusively triable by Court of Session. On committal, the same came to be numbered as Sessions Case No.340 of 2009.
Basing on the material available on record, charges under Sections 302 r/w.34 of I.P.C and Section 201 r/w.34 of I.P.C. against accused Nos.1 and 2 were framed, read over and explained to them, to which they pleaded not guilty and claimed to be tried.
To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P-1 to P-19 and M.Os.1 to 7. D.W.1 was examined on behalf of the defence and marked no documents. P.Ws. 2,5,6,8,9 turned hostile and did not support the prosecution case.
After the closure of prosecution evidence, the accused Nos.1 and 2 were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them, in the evidence of the prosecution witnesses, to which they denied.
Considering the evidence on record, more particularly, P.Ws. 1 to 11, the learned VII Additional District and Sessions Judge, Vijayawada, while acquitting Accused No.2, convicted Accused No.1 for the offence punishable under Section 302 I.P.C under Section 235(2) Cr.P.C and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for two months. Assailing the said conviction, the present criminal appeal came to be filed.
6 HACJ & MSMJ Crl.A_456_2012 Learned counsel for the appellant would contend that there is no legal evidence to connect Accused No.1 with the crime. According to him, there are number of circumstances to indicate that neither P.W.10 nor P.W.11 have witnessed the incident. It is urged that when the evidence of the witnesses show that the crime vehicle was at the scene for an hour and then taken to police station, it is strange as to how the vehicle could be seized from a quarry few days after the incident. He pleads that P.W.11 could not have seen the accused as the driver of the accused in view of the non admissions in the cross- examinations.
On the other hand, the learned Advocate General opposed the same contending that having to the motive, and the earlier incident of attack, the evidence of P.Ws. 10 and 11 which corroborate with each other can be made the basis to convict the accused.
The point for consideration is whether the evidence available on record is sufficient to hold the accused guilty of the charges levelled against him.
As seen from the record, P.Ws. 2,5,6,8 and 9 did not support the prosecution case and they were treated hostile by the prosecution.
P.W.1 is the sister of the deceased. According to her, her elder brother Venkata Narayana died after taking sleeping pills in the drink administered by his wife (A2). After the death of Venkata Narayana, all the brothers left the Donabanda village and residing in Satyanarayanapuram Village. It is said that there were disputes between Venkata Narayana and his wife-A2 in connection with her relation with A1. Venkata Narayana has two children, who are BabuSainath and Sailaja and they are studying in Hyderabad. Two to 7 HACJ & MSMJ Crl.A_456_2012 Three days earlier to the death of Venkata Narayana, A2 left from the marital life of her brother. On 24.4.2009, P.W.1 and family members were performing the 1stDeath Anniversary of late Venkata Narayana. All the family members, including deceased's brothers and their families, husband of P.W.1 and children of late Venkata Narayana, were proceeding from Satyanarayanapuram Village to Donabanda Village. At DonabandaVillage, both the accused threatened to kill all family members of late Venkata Narayana by dashing against his lorry.On 3.5.2009, she claims to have received phone call that his brother Lakshmana Rao was said to have been killed in a lorry accident. From the evidence of this witness it is clear that she is not an eyewitness to the incident. She only speaks about the earlier family life and the relationship between family members. However, in the course of cross-examination, it has been elicited that she has not stated in her 161 Cr.P.C. statement or in Ex.P1report about A2 administering some tables to her husband leading to his death. She also failed to mention about the illicit intimacy between A1 and A2 and the disputes on that ground between A2 and her husband in the complaint or in her 161 Cr.P.C. statement. She denied the suggestion that herself and her husband were in Tiruvuru on 3.5.2009 and on the other hand, she says that they were in Vijayawada on that day. She categorically admits that she was not present at the scene of offence and that P.W.10 informed her about the incident. She was also subjected to lengthy cross-examination with regard to the dispute, but nothing could be elicited. The suggestion that she got this case foisted only because of property disputes between her and A1 was denied by her. Her evidence establishes that her elder brother 8 HACJ & MSMJ Crl.A_456_2012 ParamkusmaSrinivasa Rao filed a complaint before the Commissioner of Police against A2 with regard to the house of the Venkata Narayana. She pleads ignorance that the house in question was purchased by A2 and her husband under assigned land and the patta was not transferred in their names after the purchase. As observed earlier, P.Ws.2, 5 and 6did not support the prosecution case and turned hostile.
P.W.4 was working as Home guard in City Armed Reserve. She is the wife of the deceased Lakshman Rao and co-daughter-in-law of A2. According to her, there was illicit intimacy between A1 and A2, which came to the knowledge of the deceased and he warned both of them to behave properly. About 10 days prior to the incident in this case, the 1stAnnual Ceremony of late Venkata Narayana took place and in that connection there was quarrel between the deceased Lakshman Rao and A1 wherein A1 threatened to kill the deceased by using his lorry.In the cross-examination she admits that she has not seen as to how the incident took place and she has not gone to the place of accident. P.W.10 came to her house on 2.5.2009 at 9 PM for the purpose of certificates. She admits that she does not know when report was given by P.W.1 and the contents of the report. She denied the suggestion that she was deposing as per the dictation of P.W.1. The suggestion that the deceased Lakshman Rao was going on a wrong route and because of which the accident took place was denied by her. She admits that P.W.1 making efforts to get the house transferred in the name of children of Venkata Narayana which is in the occupation of A2. She pleads ignorance as to the alienation of the house and also about the person in whose name the house stands.
9 HACJ & MSMJ Crl.A_456_2012 To a suggestion that there was also an incident prior to 2.5.2009 was denied by her. However, in the cross-examination, she admits that brother-in-law of P.W.1 is a retired police officer by name P.M.Suri and that he came and helped in this case. To a suggestion that accused are not connected with the present offence was denied by her.
P.W.10 is stated to have accompanied the deceased on the date of incident. He claims to be an eye-witness to the incident. In his chief-examination, he deposed that on 03.05.2009, himself and the deceased were going from Kethanakonda to Donabanda after purchasing chicken and when they reached near Donabanda on National Highway, they stopped their vehicle to attend calls of nature and when he crossed the road divider, A1 came on his 10-tyre lorry and dashed against the deceased and went away. P.W.10 further stated that while going away, the accused has seen him and due to previous grudges, accused No.1 killed his junior paternal uncle, as threatened by him earlier on 24.04.2009.
Contrary to his statement in the chief-examination that they were going from Kethanakonda to Donabanda after purchasing chicken, P.W.10, in his cross-examination, stated that, on the date of incident, they were going to Donabanda to get petrol. Thus, his evidence is self-contradictory. Further, P.W.10 stated that he did not know the distance from the road to the place where he went to attend calls of nature but stated that it is on downward slope. He admitted that he has to face towards southern side for answering the calls of nature and one cannot see the vehicles passing from east to west while attending the calls of nature. Thus, though he is projected as an 10 HACJ & MSMJ Crl.A_456_2012 eye-witness to the incident, but the admissions elicited in his cross- examination as to his facing towards southern side while answering the calls of nature and the vehicle passing from east to west, give rise to a serious doubt as to his witnessing the incident.
Further, P.W.10 has stated in his cross-examination that the police have taken the crime vehicle in about one hour to the police station. He stated that he did not know where it was seized. When he went to the police station on the next day in connection with post- mortem of the deceased, the lorry was in the police station on that day, i.e., on 04.05.2009. This piece of evidence of P.W.10 in relation to seizure of crime vehicle is not in consonance with the evidence of the Investigating Officer-P.W.14. P.W.14-Inspector of Police has categorically stated that pursuant to the confession of the accused, the crime vehicle was seized from a quarry at Kachavaram village on 06.05.2009 and the lorry was in partly damaged condition. In view of the contradictions pointed out, the evidence of P.W.10 does not commend credibility.
The prosecution tried to corroborate the evidence of P.W.10 by P.W.11.
P.W.11 is stated to be another eye-witness to the incident. In his chief-examination, he deposed that on 03.05.2019, in the morning hours, he was going on his TVS 50 Moped from Vijayawada to Paritala Anjaneyaswami temple and at 9.15 a.m., when he was going on NH-9, he noticed a person sitting on a motorbike on the left side of Kethanakonda-Donabanda road. At that time, a 10-tyre lorry dashed the person sitting on the bike and he has seen the driver, who has 11 HACJ & MSMJ Crl.A_456_2012 also seen him. P.W.11 identified A1, who was present in the court hall, to be the driver of the crime lorry and also furnished the number of lorry as AP 16 TX 5998. P.W.11 further stated that he went to the person whom the lorry hit and identified him as Lakshmanrao, who is a known person to him. P.W.11 further stated that he heard the screaming sounds of Babu Sainadh (P.W.10).
It is to be seen that no test identification parade was conducted after the incident and nearly after two years after the incident, P.W.11 saw the accused in the Court hall and identified him as the driver of the crime lorry, which is not in consonance with probabilities. Further, the evidence of P.W.11 does not corroborate with the evidence of P.W.10. P.W.11 stated that he heard the screaming sounds of P.W.10, whereas, in his evidence, P.W.10 did not speak anything about his raising hues and cries. It would be appropriate to refer to the evidence of Investigation Officer at this stage. It appears that no investigation was done as to whether P.W.11 could have seen the incident by standing on the slope.
He admits that he did not depict the slope that is the down annexed to the margin of the road in Ex.P11 to where P.W.10 had gone to pass urinals. He further admits that he did not know even approximately whether the slope to the down is in between 6 and 8 feet. He further admits that the possibility of seeing the vehicles toing and froing either from east to the west or from the west to the east on NH9 road depends upon the standing position of a person passing the urinals. He submits that whether it is possible for P.W.10 passing the urinals facing the southern side to observe the accident is hypothetical question and it depends on the observation capacity of that boy. He 12 HACJ & MSMJ Crl.A_456_2012 admits that there are no residential houses on either side of the road. Apart from that, he did not examine anybody from the petrol bunk in front of which the accident took place. Further, his evidence discloses that P.W.10 did not disclose to him about the presence of P.Murali and T.Rambabualong with him at the time of noticing the accident. Further, P.W.11 did not state before him during the course of investigation about noticing the person bestrode on motorcycle while he was passing on NH9 road to go to ParitalaAnjaneyaswamy temple at about 9.15 AM. On the other hand, a different version was sought to be given in his 161 Cr.P.C. statement, namely, that he noticed accident while he was returning from ParitalaAnjaneyaswamy temple, which is not the version set out before the Court. Thus, the evidence of P.W.11 is also not trustworthy.
Accordingly, the criminal appeal is allowed setting aside the judgment dated 13.04.2012 passed by the learned VII Additional District and Sessions Judge (FTC), Vijayawada, in Sessions Case No.340 of 2009. Bail bonds furnished by him at the time of his securing conditional bail shall stand discharged. Fine amounts paid by him, if any, shall be refunded.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:19.07.2019 Sp/Skmr/Ibl